Section 40 and Leveson 2

The Government has just closed it’s consultation on whether to commence Section 40 of the Crime and Courts Act 2013, and whether to hold Part 2 of the Leveson Inquiry. To the uninitiated, commencement is making sure that the law now applies. It’s not enough for it just to receive Royal Assent, the relevant Government department must put it into action. My favourite example of this is the Easter Act 1928, which means that the date of Easter Sunday is fixed to be the Sunday following the second Saturday in April. It’s the law of the land, given Royal Assent, but has never actually been commenced, which is why Easter still bounces around the spring calendar like a demented bunny.

So, Section 40 is the final bit of the Leveson jigsaw to ensure stronger press regulation. It’s the carrot-and-stick bit, the incentive for the press to sign up to a recognised regulator, and Government has refused to commence that bit. Part 2 of the Leveson Inquiry is the bit that will look at the phone hacking elements and accusations within the press. It was delayed because of the cases going through the courts.

To be honest, the way that Government wrote the consultation questions, it is extremely likely they have already decided not to do Leveson Part 2, and also not to commence section 40. To aid their decision, the national and some parts of the local press have “helpfully” spread a load of misinformation about what the effect would be. But, as someone who gave evidence in person to Leveson Part 1, and someone who has dealt with the shortcomings of press regulation since 2010, it was necessary to make a submission. So, here it is:

This is my personal submission to the Secretary of State’s consultation over commencement of section 40 and the continuation to phase 2 of the Leveson Inquiry. Before answering the questions posed in the consultation, I would like to give some background.

BACKGROUND

Evidence to Leveson Inquiry

I am a founder member of Trans Media Watch, a charity which tries to work with the British media (including the press, broadcasters, advertisers and regulators) to report trans and intersex issues with accuracy, dignity and respect.

I was one of three compilers of the charity’s submission to phase 1 of the Leveson Inquiry. In that submission we highlighted how the mainstream press routinely abused their position and exploited vulnerable trans people, their families and associates, often at great cost to the individuals involved and the public authorities.

I was invited to give oral evidence to the Inquiry in February 2012. Being in the situation of challenging press behaviour and ethics while in the public eye was incredibly stressful – not so much for the experience in court, which was eased significantly by the Inquiry team, but rather because of the fear of what the press would then do to me, my family and my associates. As it turned out, they did not pursue me.

In my evidence I gave a number of examples of egregious press coverage, including one from the day before my appearance. I also repeated TMW’s recommendations including the Editors’ Code be explicitly strengthened with regards to gender identity (because a PCC clarification from May 2005 that gender identity was included under other characteristics was being routinely ignored), that any regulator should be able to take complaints on discriminatory pieces about groups of people, and that any mediation or arbitration process should be free for the complainant. I explained that many trans and intersex people who found themselves in the press spotlights against their will and purely because they are trans or intersex are unable to afford to initiate any legal case, and are unwilling to do so because of the risk of further press exposure.

Press behaviour since my appearance

In the two weeks following my appearance at the Inquiry, the tabloid press continued with two new approaches which placed trans people in real danger. We quickly pulled together another submission on these two new stories, which was acknowledged within minutes by the Inquiry team. It was only at that point that the press abuses stopped, only to resume again after the publication of the Leveson Report. This demonstrated to me very clearly that the press would only behave responsibly if they were strongly held to account by a high profile body.

TMW’s evidence was referenced in its own section of the report, and I was also referenced in a few other places. The report added to our condemnation of press reporting of trans and intersex issues by further condemning the unnecessary outing of trans people.

The death of Lucy Meadows in March 2013, a transitioning primary school teacher who was outed (despite Lord Justice Leveson’s condemnation) just before Christmas 2012, was the event that changed the outlook and approach of some of the press. It is incredibly sad that it took a death to do so. Indeed, the coroner accused the press of being complicit in her death – something that the press denied.

When the press resumed reporting of trans and intersex issues in August 2014, we then encountered a number of outings, again against Lord Justice Leveson’s recommendation. The press defended these on the basis of being supportive and creating role models – even if the individuals concerned did not want press coverage. We started to find that papers were printing discriminatory pieces about trans people as a group, but not naming any individuals, meaning that no complaint could be taken forward – IPSO will only take complaints under the discrimination clause of the Editors’ Code if an individual is named. Finally we find trans people being unfairly and inaccurately positioned as opponents of free speech, something which was thrown at me again by a Conservative agent earlier this week.

Emily Brothers case and IPSO

I was asked to advise and then support Emily Brothers, a Labour parliamentary candidate, in a complaint against The Sun newspaper for a short comment piece published in December 2014. The piece was clearly discriminatory and broke the Editors’ Code on the basis of both gender identity and disability. Yet The Sun defended it on the basis of free speech. They also tried to claim that comment pieces were not subject to the Editors’ Code.

The IPSO complaints process required us to negotiate with the paper initially, but it was obvious from an early stage – when the paper agreed to print an apology, but the apology further victimised Ms Brothers – that negotiations were going nowhere. When we got to IPSO, we had to negotiate that Trans Media Watch was complaining on Ms Brother’s behalf and with her consent. A brief attempt at a further mediation failed, then IPSO ruled that the piece was indeed pejorative and prejudicial, and was a clear breach of the Editors’ Code. We had asked IPSO to clarify that comment pieces were subject to the Editors’ Code, which they did. We also asked IPSO to rule on the victimisation of Ms Brothers. IPSO made no substantive comment on this.

IPSO required The Sun to print their ruling with various conditions. The Sun did not comply with all the conditions, yet there was no penalty for them for non-compliance. As far as I can remember, The Sun never properly apologised to Ms Brothers. This showed us that, despite the distance IPSO had tried to place between itself and its forerunner, IPSO was still toothless and ineffective.

In September 2015 I was asked to give evidence about media coverage of trans people to the new Commons Women and Equalities Select Committee. I repeated the point I made to Lord Justice Leveson, that we needed IPSO to take complaints about pieces that discriminated against groups rather than individuals. IPSO responded to the Committee, but their response was that they did take complaints raised by groups and referenced the TMW case (of which I was well aware) as an example. It was concerning that IPSO had attempted to misdirect the Committee in this way.

Some parts of the national press have consistently improved their coverage since the death of Lucy Meadows. Other parts have resumed their practices from before the Leveson Inquiry, despite specific IPSO guidance and the clarification of the Code we had requested. Those parts who have not improved seem to be the ringleaders in opposing both the commencement of section 40 and the resumption of the Leveson Inquiry. It makes me wonder what they have to hide – which is, in itself, a reason to continue with Part 2 of the Inquiry.

My personal position

I am appalled that Government has not yet commenced section 40 of the Crime and Courts Act, despite this being the law of the land for over 3 years. I am equally appalled that Government appears to be seriously considering stopping an inquiry half way through. As I will make clear, both are substantial breaches of Government promises to many vulnerable people. I am concerned at the way this consultation has been worded, as it appears to indicate a clear will to scrap both section 40 and phase 2 of the Leveson Inquiry. Statements such as “much has changed in that time” (in the Foreword) are presented as facts rather than allegations. In my experience, as outlined above, little has changed in the way the press regards itself nor many of its underlying standards, ethics or behaviour. The need for strong, effective regulation is as apparent now as it was five years ago. While the framework is now there, the press insists on ignoring it.

The press likes to misdirect the public to believe that section 40 would enable many rich people to victimise the press, whereas the reality is that it protects many more vulnerable people from victimisation by the press. The lack of commencement means that vulnerable people are still being exploited by the press, four years after Lord Justice Leveson reported and some of the poor press behaviour had been revealed.

This summer I was selected as a parliamentary candidate for a seat regarded as winnable. That now makes me a public figure to some extent. The press has a right to hold such public figures to account. Having a trans background, however, does substantially increase the fear of what press exposure will be like – fear held not just by me but by my close family also. Such fear is a major disincentive to play a part in public life. With a press that seems determined that no-one should ever hold it to account, and nowhere I feel I can trust to go should egregious and misleading press coverage arise, I fully understand why so few trans people feel they can contribute to public life in such a way. This obstacle to full participation in our democracy is clearly wrong. In order to level the playing field against an industry which wields such influence over public opinion it is imperative that we have strong, independent and verifiable regulation of the press. The breaches of Government promises mean that I also have to deal with repeated allegations that all politicians are liars.

ANSWERS TO CONSULTATION QUESTIONS

1

Statement (b) – Government should commence section 40 now

2

It was extremely disappointing to hear the Prime Minister at the time backtrack almost immediately on his many promises to the victims of press abuses and the general public, that Government would implement Lord Justice Leveson’s proposals in full unless they were “bonkers”. With the exception of large sections of the press, it was commonly accepted that the proposals were entirely reasonable, but still Conservative MPs and ministers wished to dilute the measures to be implemented.

Lord Justice Leveson’s measures were carefully thought through, after hearing months of evidence and reading a large number of written submissions. Many victims of press abuses, including those we included in our full submission (a number of personal testimonies were redacted from the published version because of the contributors’ fears that the press abuse would start all over again) required huge amounts of courage to tell their stories and relive their horrific experiences. For Government to not fully implement the promised reforms is a massive slap in the face for these people, who believed the Prime Minister’s many promises before and during the Inquiry.

Part of the Leveson proposals was the requirement to incentivise the press to sign up to an officially monitored regulator. The Press Complaints Commission was widely regarded as ineffective, and it was recognised that the press had far too much influence over it. It was also recognised that, in order to maintain public confidence, any new regulator of the press had to be monitored to ensure that it was (a) independent of the press and (b) an effective regulator. The Press Regulation Panel was therefore established by the somewhat archaic process of Royal Charter to do precisely those tasks. This was immediately lambasted by the press as “state regulation”, which it clearly is not.

In order to incentivise the press to sign up to such a regulator, which Lord Justice Leveson recognised it was probably necessary to provide both carrot and stick – carrot in that any legal costs incurred by a publisher would be restricted if the publisher signed up to a recognised regulator; stick in that any legal costs incurred by a claimant would be paid by the publisher if the publisher did not sign up to a recognised regulator. The national press has steadfastly refused to sign up to a recognised regulator, and is now campaigning for the carrot-and-stick to be removed from law.

Not to commence section 40 would mean it is very likely, given the apparent inability of the press to reform itself, that we would incur the costs of yet another public inquiry into press standards and the failure of press regulation in a few years after some fresh new horror.

I have already referenced that many trans and intersex people are economically disadvantaged and that initiating court proceedings is therefore impossible or undesirable. Indeed many people in our society, trans or not, will be in the same financial position. Section 40 provides for an effective route to justice for these people. Not to do so means that access to justice will largely depend upon an ability to afford justice. I would suggest that any “chill” in editors rooms is not because vulnerable people may complain, but that rich people may take them to court. The Leveson proposals limit the costs to the press should they sign up to effective arbitration as part of a monitored regulator, so this would actually remove that “chill”.

It can be argued that Government’s first duty is to protect the public. Commencing section 40 does this. Not to commence section 40 leaves the general public vulnerable to continued exploitation by the press.

I do not support the idea of continuing to keep section 40 under review, as that continues the uncertainty around press regulation.

I do not support the idea of repealing section 40. The press clearly view section 40 as the primary incentive to join a recognised regulator. Repealing this would remove that incentive, and we would continue with the current unsatisfactory model, where it is not clear which regulator regulates which publication and what standards the regulator adheres to.

I do not support the idea of a partial commencement of section 40. While it is true that the press is made up of commercial organisations, it is unlikely that the removal of any financial incentive (such as that provided by section 40) will cause any further changes in press behaviour. This would be marginally better than repeal, but not much.

In short – by not commencing section 40, Government is ignoring the already expressed cross-party will of Parliament, is looking to breach numerous promises made to many aggrieved and vulnerable victims of press misbehaviour, is failing in its duty to protect the general public by allowing easy access to justice, and can be seen as simply kow-towing to a powerful lobby who can shape a large portion of public opinion more easily than any other industry.

3

As referenced in my answer to 2, section 40 is clearly an important and necessary incentive for the press to sign up to a truly independent and effective regulator. It is concerning that, despite all the evidence of ongoing problems with the current regulatory regime, the press insists that there is no need for proper regulation. It is therefore clear that Lord Justice Leveson was correct and such an incentive is clearly needed.

However there are problems with the way this question is worded. Given Government’s duty to protect the public, and given that Parliament voted for this law, the question should be more focused on what the impact would be of removing any incentive for publishers to join a recognised regulator, which would largely be that nothing will change – the press will continue to ignore the existence of a monitored regulator, painting it inaccurately as state regulation; as a result vulnerable people will continue to suffer abuses while the rich and powerful will continue to escape press scrutiny.

4

None of the terms of reference for Part 2 of the Leveson Inquiry have been covered already, so Part 2 is still required.

5

Again, this question is skewed. A number of journalists who were tried for crimes associated with hacking attempted to pass blame for their actions to their editors. Accordingly these questions, which were not addressed in the courts, and which were not asked in Part 1 of the Leveson Inquiry because of the legal action which was ongoing at the time, still need to be investigated.

By asking for evidence to support the requirement for the continuation of the Inquiry, you are pre-empting the Inquiry process itself. To attempt to thwart this part of the Inquiry, which was again repeatedly promised by Government, draws the Government’s actions into disrepute and raises questions about what influence the press has over the Government.

The Inquiry must go ahead under its current terms.

6

Continue the Inquiry with the original terms of reference.

For the reasons expressed above, I dispute that “the press has undergone significant changes”. Therefore the option to terminate the Inquiry is invalid.

I object to an either/or being included as part of this option, as Government can take these answers and say there is support for modifying the terms of reference. If Government was serious in this already flawed consultation, then three options would have been provided for this question.

This last part of this consultation raises serious doubts about how much Government has already decided regarding section 40 and Part 2 of the Leveson Inquiry.